FILED

United States Court of Appeals

Tenth Circuit

July 1, 2009
PUBLISH

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COLTON REBER,
Petitioner-Appellant,
v.

No. 08-4057

HON. LARRY A. STEELE, and

MARK L. SHURTLEFF, Utah
Attorney General,
Respondent-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF UTAH
D.C. No. 2:08-CV-00051-BSJ

Michael L. Humiston, Heber City, Utah, for Petitioner-Appellant.

Erin Riley, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney
General, with her on the brief), Salt Lake City, Utah, for Respondents-Appellees.

Before HENRY, Chief Judge, McWILLIAMS and GORSUCH, Circuit Judges.

HENRY, Chief Judge.

Petitioner Colton Reber, a descendant of the Uintah Band Indians, was

convicted in Utah state juvenile court of felony wanton destruction of wildlife, in
violation of Utah Code 23-20-4. Having exhausted his remedies through the
state courts, Mr. Reber filed the present 28 U.S.C. 2254 action in the United
States District Court for the District of Utah. Mr. Rebers 2254 petition
contends that because he is an Indian, and because the offense occurred on Indian
land, the Indian tribenot the State of Utahis the victim of the offense. Thus,
neither the Eighth District Juvenile Court, nor the State of Utah, possessed
jurisdiction over the offense. The federal district court dismissed Mr. Rebers
habeas petition because it plainly appear[ed] from the petition and any attached
exhibits that the petitioner [wa]s not entitled to relief. Aplts App. at 60.
We granted Mr. Reber a certificate of appealability on August 18, 2008,
concluding that he had made the requisite substantial showing of the denial of a
constitutional right, as required by 28 U.S.C. 2253(c)(2). Upon further review,
however, we find that the premature filing of Mr. Rebers 2254 petition
deprived the district court of jurisdiction, and thus precludes our review.
Accordingly, we vacate the district courts ruling on the merits of the petition,
and remand to the district court with instructions to dismiss the petition without
prejudice.
I.

Factual Background
While on a hunting trip in 2002, thirteen-year old Colton Reber shot and
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killed a large mule deer. Later, when transporting the deer, Mr. Rebers vehicle
was stopped at a checkpoint in Uintah County, where the Utah Division of
Wildlife Resources was checking for chronic wasting disease in deer. At that
time, conservation officers observed the deer in the truck bed with no hunting
permit, license, or tag attached to the animal. As a result, the State of Utah
brought criminal charges against Mr. Rebers father, and referred Mr. Rebers
case to juvenile court.
II.

Procedural Posture
Mr. Reber was convicted in state juvenile court of felony wanton

destruction of wildlife, in violation of Utah Code Ann. 23-20-4. On appeal to

the Utah Court of Appeals, Mr. Reber contended that as a member of the Uintah
Band of Indians (the Band), he possessed hunting rights reserved to the Band
under the Executive Order of October 3, 1861, and the Act of May 5, 1864, ch.
57, 13 Stat. 64, which set apart the Uintah Indian Reservation for the Bands use
and occupancy. Mr. Reber contended that his status as a Uintah Band member
divested the State of Utah of jurisdiction to regulate or prosecute his exercise of
hunting rights on the reservations premises. The Utah Court of Appeals agreed,
concluding that the state lacked jurisdiction to prosecute a violation of section
23-20-4 when committed in Indian Country. C.R. v. State, 2005 UT App. 486
(citing State v. Reber, 2005 UT App. 485 (unpublished)).
On April 25, 2007, the Utah Supreme Court reversed the Utah Court of
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Appeals ruling vacating Mr. Rebers conviction. In reinstating the convicting

courts finding of deliquency, the Utah Supreme Court reasoned, A state has
jurisdiction over crimes committed in Indian country when a non-Indian commits
a victimless crime. [Mr. Reber is] not [an] Indian[], as that term has been defined
by federal law, and the crimes in these cases were victimless. State v. Reber,
171 P.3d 406, 411 (Utah 2007).
The Utah Rules of Appellate Procedure establish a procedure for
remittitur, a formal revesting of jurisdiction with the trial court after appellate
proceedings. Chase Manhattan Bank v. Principal Funding Corp., 89 P.3d 109,
111 (Utah 2004). The primary effect [of remittitur] is to provide a clear
indication that the trial court has regained jurisdiction to take action consistent
with the mandate. State v. Lara, 124 P.3d 243, 246 (Utah 2005). On April 30,
2007, after the Utah Supreme Courts decision but prior to the issuance of a
remittitur returning jurisdiction to the trial court, the Eighth District Juvenile
Court entered a Review and Order sentencing Mr. Reber to a fine of $555.00. In
light of this premature action and pursuant to the parties stipulation, the trial
court struck the sentence on July 26, 2007.
On January 16, 2008, Mr. Reber brought the instant habeas action under 28
U.S.C. 2254, asking this court to vacate the Eighth District Juvenile Courts
adjudication of delinquency for lack of jurisdiction. The district court denied Mr.
Rebers petition, concluding that the State courts ruling was not contrary to,
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[nor did it] involve[] an unreasonable application of clearly established Federal

law. Aplts App. at 60.

III.

In light of the premature status of Mr. Rebers 28 U.S.C. 2254

petition, the district court lacked jurisdiction to address it.
We granted a certificate of appealability on the issue of whether the State

of Utah convicted Mr. Reber in violation of the Supremacy and Due Process
clauses of the U.S. Constitution. We do not reach these questions, however,
because Mr. Rebera state-court defendant who filed a 2254 petition prior to
sentencingfailed to comply with the jurisdictional requirements of 28 U.S.C.
2254.
Absence of jurisdiction in the convicting court is a proper basis for federal
habeas relief cognizable under the due process clause. See, e.g., Danforth v.
Minnesota, 128 S. Ct. 1029, 1036 (2008) (recognizing that, [o]riginally, criminal
defendants whose convictions were final were entitled to federal habeas relief
only if the court that rendered the judgment under which they were in custody
lacked jurisdiction to do so.); Lonchar v. Thomas, 517 U.S. 314, 322 (1996)
(observing that a writ under 2254 has evolved into an instrument that now
demands . . . conviction by a court of competent jurisdiction). We review a
district courts decision on subject matter jurisdiction de novo. Tsosie v. United
States, 452 F.3d 1161, 1163 (10th Cir. 2006). As is the general rule in habeas
cases, Mr. Reber possesses the burden of proof. Garlotte v. Fordice, 515 U.S. 39,
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46 (1995).
Nevertheless, under 2254, we may entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution or
laws or treaties of the United States. As the Supreme Court instructed in Burton
v. Stewart, [f]inal judgment in a criminal case means sentence. The sentence is
the judgment. 549 U.S. 147, 156 (2007) (quoting Berman v. United States, 302
U.S. 211, 212 (1937)); Ferreira v. Secy, Dept of Corr., 494 F.3d 1286, 1293
(11th Cir. 2007) ([The Supreme Courts decision in] Burton makes clear that the
writ [of habeas corpus] and AEDPA, including its limitations provisions, are
specifically focused on the judgment which holds the petitioner in confinement.
What this Court has previously called the judgment of conviction and the
sentencing judgment together form the judgment that imprisons the petitioner.),
cert. denied, 129 S. Ct. 1033 (2009).
Here, as he concedes, when Mr. Reber filed his 2254 petition in the
federal district court, [he] had not been sentenced. Aplts Reply Br. at 3.
Although the state trial court imposed a $555.00 fine on April 30, 2007, it struck
that sentence on July 26, 2007, pursuant to the parties stipulation. Accordingly,
his 2254 petition was premature, and the district court lacked jurisdiction to
adjudicate it. See Edelbacher v. Calderon, 160 F.3d 582, 585 (9th Cir. 1998)
(agreeing with a district courts holding that it should not entertain petitioners
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federal habeas petition in the absence of a penalty phase judgment in state court
or until the existence of extremely unusual circumstances warrant an exception). 1
Accordingly, the district court lacked jurisdiction to adjudicate Mr. Rebers
2254 petition.
IV.

Conclusion
Mr. Rebers 28 U.S.C. 2254 petition was filed prior to the issuance of a

final judgment, and thus, the district court lacked jurisdiction to review the
petition. For this reason, we VACATE the district courts dismissal of Mr.
Rebers 2254 petition on the merits, and remand the case to the district court
with instructions to dismiss the petition without prejudice.

In a January 2009 letter to the court, counsel for the respondentsappellees reported that Mr. Reber was finally sentenced on December 22, 2008.
Counsel attached an order from the Eighth District Juvenile Court for Uintah
County imposing a $555.00 fine and ordering Mr. Reber to pay $4,000 in
restitution to the Dwr-Help Stop Poaching Fund.
We appreciate counsels effort to inform us of developments in the case.
We note, however, that the December 22, 2008 sentence does not alter our
conclusion that the district court lacked jurisdiction to adjudicate Mr. Rebers
2254 petition. Mr. Reber must satisfy the requirements of 2254 when the
petition is filed, see Erlandson v. Northglenn Mun. Court, 528 F.3d 785 (10th Cir.
2008), cert. denied, 129 S. Ct. 928 (2009), and he has failed to do so. In the
event that Mr. Reber seeks to challenge the December 2008 sentence in future
proceedings, we note that [t]he payment of restitution or a fine, absent more, is
not the sort of significant restraint on liberty contemplated in the custody
requirement of the federal habeas statutes. Id. (internal quotation marks
omitted).
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